Newspaper column(s): Court should have left sanctuary cities petition up to voters … before and after

Editor’s note: This week there are actually two columns. One was written before the Nevada Supreme Court ruled Wednesday on an appeal about the Prevent Sanctuary Cities initiative petition and one after. The before appears in about half the papers that print it and the after in the other half. Oh well. Who expected the justices move so fast? This how it is done on the fly.

Before:

Sometimes it seems the argument boils down to: Those darned voters just aren’t smart enough to figure it out.

That notion was never stated but seemed to linger in the background this past week at the Nevada Supreme Court during arguments about whether an initiative petition should be allowed to appear on the ballot, if enough signatures can be gathered.

The Prevent Sanctuary Cities initiative proposes to amend the state Constitution to prohibit state and local governments passing laws limiting or discouraging enforcement of federal immigration laws, which has happened in several California cities.

After the American Civil Liberties Union challenged the petition, a Carson City district court judge ruled in January the petition was “excessively broad and general” and likely to confuse voters, thus barring it from appearing on the ballot. Proponents appealed to the state’s high court.

Though opponents challenged the petition, claiming it violated the law by not addressing only a single subject, as the law requires, and failed to adequately provide a description of potential consequences, Paul Georgeson, the attorney representing the petitioners, argued to the court the only foreseeable effect of passage would be to prohibit state and local government from passing laws deterring enforcement of federal immigration laws.

“All of the other potential consequences that are identified by the opponents, and which frankly the district court didn’t get into at all in its analysis, are hypothetical and speculative,” he claimed.

Opponents have argued such an amendment might cost local communities money to enforce the law, might harm public safety because immigrants might be reluctant to report crime and they might refuse to enroll in social services.

But attorneys for petitioners note that if the matter is qualified for the ballot there will be an opportunity for both sides to make pro and con statements that will accompany the ballot language.

Georgeson said in court, “The district court did not make a determination or identify any potential effects that are not included in this petition description that should be included,” adding, “How does someone successfully draft a petition to meet the requirements if they have to anticipate which speculative, hypothetical effect the opponents are going to argue?”

Georgeson said the district judge created a new criteria by saying the topic was too broad, saying the petition is still on a single subject, even if the subject is broad.

Of the description of effect, Georgeson said, “It doesn’t have to be the best description, it just has to be an accurate description. The description of effect in this case is succinct, direct, accurate, non-deceptive …”

Marc Elias, an attorney for opponents, argued that the single subject rule and the requirement for a description of effect are intended to give the voters a practical sense of what they are signing or voting on. “Both of these two safeguards are in place for the same reason. They are to prevent voter confusion and they are to promote informed decision making,” he said.

Elias argued federal immigration law covers many subjects and is subject to change, and the petition is, therefore, misleading. He argued that the very name of the petition connotes lawlessness to some but to others it means providing succor.

He also claimed immigrations laws affect everything from treaties to Social Security and welfare benefits. “The voter doesn’t even know what the laws are that are being rolled. All it knows are that there is this undefined notion of federal immigration law, which, as I point out, is ever changing.”

Justice Chris Pickering noted that Nevada voters amended the state Constitution to tie the state minimum wage to the federal minimum wage law, which is subject to change.

Justice James Hardesty followed up by saying, “If the federal government enacts an immigration law tomorrow or if there is one on the books today this initiative prohibits state interference with that immigration law. How is that a violation of the rules we’ve enacted? Let’s get focused here — the rules we’ve enacted for determining the single subject rule. My understanding from the briefs is that single subject that’s been articulated, again not speaking to the policy, whether it is good, bad or indifferent policy is a separate question. But the single subject that’s stated here seems pretty clear. Local government, state government isn’t going to adopt any law that interferes with federal immigration laws. Sounds like a single subject to me.”

The court should let the voters decide if they are confused and whether the proposed policy is good or not.

After:

Sometimes it seems the argument boils down to: Those darned voters just aren’t smart enough to figure it out.

That notion was never stated but seemed to linger in the background this past week at the Nevada Supreme Court during arguments about whether an initiative petition should be allowed to appear on the ballot, if enough signatures can be gathered.

The Prevent Sanctuary Cities initiative proposes to amend the state Constitution to prohibit state and local governments passing laws limiting or discouraging enforcement of federal immigration laws, which has happened in several California cities.

After the American Civil Liberties Union challenged the petition, a Carson City district court judge ruled in January the petition was “excessively broad and general” and likely to confuse voters, thus barring it from appearing on the ballot. Proponents appealed to the state’s high court.

Opponents challenged the petition, claiming it violated the law by not addressing only a single subject, as the law requires, and failed to adequately provide a description of potential consequences, Paul Georgeson, the attorney representing the petitioners, argued to the court the only foreseeable effect of passage would be to prohibit state and local government from passing laws deterring enforcement of federal immigration laws.

“All of the other potential consequences that are identified by the opponents, and which frankly the district court didn’t get into at all in its analysis, are hypothetical and speculative,” he claimed.

On Wednesday, however, the court ruled 6-1 that the petition was a single subject, but both the title of the petition and its description of effect are “confusing and misleading” to petition signers and remanded the matter to the lower court to allow a redrafting of the petition to remedy its defects.

The court ruled the “title ‘Prevent Sanctuary Cities’ is a catch-all that is subject to shifting and imprecise meanings, not a neutral, descriptive phrase.”

This means signatures already gathered are not valid and the backers would have to redraft the petition to satisfy the court and then gather 112,500 signatures by June 19 to qualify for the November ballot — a proposition that seems unlikely.

Republican state Sen. Michael Roberson, honorary chairman of the Prevent Sanctuary Cities PAC and a candidate for lieutenant governor, wrote in an email, “Even if we are not afforded enough time to obtain the necessary signatures by June 19, this is a big victory in the longer term. Obtaining certainty on the language enables us to consider a statutory initiative wherein we would have until mid-November to gather signatures.”

Roberson said the Legislature would have 40 days to adopt the language or it would go on the 2020 ballot as a statutory measure.

But he said the group is considering all options. “It also sets us up to hit the ground running in September 2019 for another attempt at a constitutional measure,” Roberson said. “Justice can be delayed but it will not be denied.”

Opponents have argued such an amendment might cost local communities money to enforce the law, might harm public safety because immigrants might be reluctant to report crime and they might refuse to enroll in social services.

The Supreme Court’s subjective ruling about the sagacity of petition signers is overly nitpicking. Even as the justices note, once the matter is qualified for the ballot “the description of effect plays no further role in the remaining initiative process.”

This because the law says the Secretary of State must prepare “arguments and rebuttals for or against constitutional amendments,” not the petitioner. Problem solved. It is up to the voters.

During oral arguments, Georgeson said, “It doesn’t have to be the best description, it just has to be an accurate description. The description of effect in this case is succinct, direct, accurate, non-deceptive …”

Marc Elias, an attorney for opponents, argued that the single subject rule and the requirement for a description of effect are intended to give the voters a practical sense of what they are signing or voting on. “Both of these two safeguards are in place for the same reason. They are to prevent voter confusion and they are to promote informed decision making,” he said.

The voters would have had ample opportunity to review the arguments for and against.

The court should have let the voters decide if they are confused and whether the proposed policy is good or not and not presumed potential confusion at the petition signature gathering level.

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